Sunday, April 17, 2016
Periodically we will see observations about whether Medicare should offer a long term care benefit as part of Medicare coverage (would this be Part E or maybe Part LTC?). It isn't a secret that many often think Medicare has a long term nursing home benefit, confusing what Medicare covers with what Medicaid does. Health Affairs Blog ran a story recently about Medicare and long term care. Medicare Help At Home offers some sobering data
Nine million community-dwelling Medicare beneficiaries—about one-fifth of all beneficiaries—have serious physical or cognitive limitations and require long-term services and supports (LTSS) that are not covered by Medicare. Nearly all have chronic conditions that require ongoing medical attention, including three-fourths who have three or more chronic conditions and are high-need, high-risk users of Medicare covered services.
Gaps in Medicare coverage and the lack of integration of medical care and LTSS have serious consequences. Beneficiaries are exposed to potentially high out-of-pocket expenses. Medicaid covers LTSS for very low-income Medicare beneficiaries, but only one-fourth of Medicare beneficiaries with serious physical or cognitive limitations are covered by Medicaid.
The authors offer a 3-part proposal that would expand Medicare coverage to include home and community-based coverages:
A Medicare home and community-based benefit for those with two or more functional limitations, Alzheimer’s, or severe cognitive impairment, according to an individualized care plan based on beneficiary goals. This would cover up to 20 hours a week of personal service worker care or equivalent dollar amount for a range of home and community-based LTSS.
Creation of new Integrated Care Organizations (ICOs) accountable for the delivery and coordination of both medical care and LTSS that meet quality standards, honor beneficiary preferences, and support care partners.
Innovative models of health care delivery including a team approach to care in the home building on promising models of service delivery that improve patient outcomes, reduce emergency department use, prevent avoidable hospitalization, and delay or reduce long-term institutional care.
The article goes on to explain eligibility, beneficiary cost-sharing, financing, care delivery and coverage. The article concludes, offering that with the Baby Boomers " the Medicare program ... was not designed to support their [boomers] preferences for independent living and functioning.
Moving forward, adoption of a home and community based benefit in Medicare would constitute an important first step to helping beneficiaries afford the services and support they need to continue living independently. Adoption of innovative models of care emphasizing care at home or in independent living settings would reduce the difficulty and risk of obtaining services in traditional health care settings such as physician offices and hospitals. It would also reduce beneficiary reliance on Medicaid’s safety-net coverage of institutional care. It is a policy proposal worthy of serious consideration as the nation grapples with Medicare redesign to meet the needs of an aging population.
Friday, April 15, 2016
Lately, I've been hearing and seeing the phrase "living wills" in mainstream news sources such as the New York Times, but at first the context was confusing to me because the media were speaking and writing about Big Banks, not humans. So, how did it come about that following the 2008 financial crisis, regulators started requiring large financial institutions to have "living wills?"
The Wall Street Journal explains in What You Need to Know About Living Wills [in the context of Big Banks]:
A living will is a document from a financial firm that describes how it would go through bankruptcy without causing a broader economic panic or needing a bailout from taxpayers. The largest U.S. banks have filed several versions of them since the 2010 Dodd-Frank law, which required living wills from financial firms that were judged to pose a potential risk to the broader economy. The documents are also known as resolution plans. “Resolution” is regulatory parlance for dealing with a failing financial firm. Living wills are separate from other regulatory requirements, such as annual “stress tests” that measure whether could banks survive a severe recession.
I've not yet determined who first came up with "living wills" to describe what Dodd-Frank, at 12 U.S.C. Section 5361(d), refers to as "resolution plans." Without accurate, full disclosure, addressing all aspects of the financial institution's operations, such plans -- by any name -- seem unlikely to achieve the goal of greater market stability. As another WSJ writer points out, the utility of Big Banks' living wills comes if not just regulators, but the Bank executives, are paying attention:
The point of the living wills, like the stress tests, is to sit banks down and make them comb through their businesses in excruciating detail, with a focus on grim aspects like liquidity crunches and operational risks in bankruptcy. A useful result of the living wills is that, if they're done correctly, they give regulators a good overall picture of how a bank works, how money flows between its parts, what its pressure points are, and how it responds to crisis. But a much more important result is that, if they're done correctly, they give bankers themselves that same overall picture: They force a bank's executives and directors to understand the workings of the bank in a detailed and comprehensive way. And if they're done incorrectly, that's useful too: They let the regulators and bankers know what they don't know.
The full article on this point is titled, with nice irony, Living Wills Make Banks Think About Death. There, a least, is one similarity in living wills for humans and banks.
The New York Times ran a story recently about a new trend in housing for elders---multigenerational homes. Multigenerational Homes That Fit Just Right are homes that, as the name implies, are designed for multiple generations of a family that live in the same house. "[A] growing number of families ... are seeking specially designed homes that can accommodate aging parents, grown children and even boomerang children under the same roof. The number of Americans living in multigenerational households — defined, generally, as homes with more than one adult generation — rose to 56.8 million in 2012, or about 18.1 percent of the total population, from 46.6 million, or 15.5 percent of the population in 2007, according to the latest data from Pew Research. By comparison, an estimated 28 million, or 12 percent, lived in such households in 1980."
But how does one accommodate family dynamics when living together under one roof? In fact, the story notes, many of the multigenerational households do live in an "ordinary" home. But, it appears that the building industry has developed an option that is catching on, "responding quickly to this shifting demand by creating homes specifically intended for such families." For example, one builder's homes "don’t offer just a spare bedroom suite or a “granny hut” that sits separately on the property or a room above a garage. The NextGen designs provide a separate entranceway, bedroom, living space, bathroom, kitchenette, laundry facilities and, in some cases, even separate temperature controls and separate garages with a lockable entrance to the main house. Family members can live under the same roof and not see one another for days if they so choose."
The article explains the drivers for the trend, baby boomers (of course), the 2008 recession, tough job market and higher rents facing millenials, the boomerang children and again, those baby boomers, "[m]any [of whom] are planning ahead in hopes that they can devote more attention to their children and grandchildren — and spend little, if any, time in a nursing home."
Expect to see more of these multigenerational homes over the next years. From a legal perspective, it seems that ground rules, a family contract and a care would be important to the success of the venture (whose turn is it to cut the grass this week? No loud music after 11 p.m. as a couple of an examples). What an interesting concept of the market changing to accommodate demand.
Thursday, April 14, 2016
As reported in The National Jurist, Seattle University School of Law has been approved by the ABA for an LLM program in elder law. The Elder Law LLM will be "added soon," along with new LLM programs in tribal law and technology. Details include:
The elder law LL.M. will train attorneys to provide representation, advocacy, and leadership in the areas of law that impact seniors and people with disabilities. Courses will cover a wide range of legal issues, including health care coverage, age discrimination, and protection from abuse and neglect.
According to an ABA website here, other law schools with LLMs in Elder Law include (of course!) Stetson University, University of Kansas, Touro University and Western New England University. Review of the linked websites suggests to me that at Touro, the LLM program may have evolved into or merged with a resource center and research platform with the title Aging & Longevity Law Institute. I was unable to find any current information on an LLM at University of Kansas.
Wednesday, April 13, 2016
I ran across a couple of articles recently about hoarding. We all have "stuff" and the older we get, the more "stuff" we may have as we accumulate a lifetime of memories. Does that mean we are hoarders? According to the article in the Washington Post, Hoarding is a serious disorder — and it’s only getting worse in the U.S.,
While the stockpiling of stuff is often pinned on America’s culture of mass consumption, hoarding is nothing new. But it’s only in recent years that the subject has received the attention of researchers, social workers, psychologists, fire marshals and public-health officials.
They call it an emerging issue that is certain to grow with an aging population. That’s because, while the first signs often arise in adolescence, they typically worsen with age, usually after a divorce, the death of a spouse or another crisis.
So you have a lot of stuff. And maybe you are disorganized (I once had someone tell me people do two kinds of organizing, some are "pilers" and others are "filers"). Does that mean you are a hoarder? Not necessarily, according to the article, because "[h]oarding is different from merely living amid clutter, experts note. It’s possible to have a messy house and be a pack rat without qualifying for a diagnosis of hoarding behavior. The difference is one of degree. Hoarding disorder is present when the behavior causes distress to the individual or interferes with emotional, physical, social, financial or legal well-being."
The article offers some interesting insights into hoarding and the research (such as it runs in families) but it isn't until recently that it's been thought of as a brain disorder. Not only may hoarding have lacked attention in the past, it's one of those situations where the person may not know to seek treatment and the response requires a multi-disciplinary approach. The article has a lot of good information and is insightful in covering the issues.
Then look at this article in Huffington Post's Post 50, 5 Signs That Someone You Love May Be A Hoarder where one expert is quoted as predicting about 4 million people in the U.S. are hoarders. "Hoarding ... is associated with a number of things including difficulty processing information, the inability to make decisions when confronted with a large amount of information and a failure to categorize things — meaning you can’t see the commonality of objects and they instead all look unique to you." This article offers 5 signs that someone is a hoarder, including constant attendance at garage sales and swap meets, never inviting visitors to the person's home, never giving anything away, keeping every scrap of paper and getting upset at the suggestion of discarding possessions. Sound like anyone you may know?
Tuesday, April 12, 2016
Huffington Post's Huff/Post 50 ran a story with an accompanying video, Millennials Show The World What They Believe ‘Old’ Looks Like. Not unexpectedly, their initial impressions involved some stereotypical perceptions of those who are older. Then watch the video to see what they have learned and how their views changed. Show the video to your class!
In April 2016, Senators Richard Blumenthal (D-CT), Bob Casey (D-PA), Sheldon Whitehouse (D-RI) and Al Franken (D-MN), introduced Senate Bill 2747 in the United States Senate. Carrying the title of "Elder Protection and Abuse Prevention Act," one provision of the bill would amend existing federal law to redefine "abuse," as that phrase is used in the Older Americans Act. The new definition would read:
The term "abuse" means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.
The existing language, defining abuse, provides:
The term “abuse” means the willful--
(A) infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or
(B) deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.
As law profs, that title doesn't surprise us. Learning is something we continually do (and so too, hopefully, our students). The Pew Research Center released a new report, Lifelong Learning and Technology. The report looks at learning from a variety of points, including learners who learn for employment and learners who learn for personal reasons.
As far as age for the personal learners, the report provides a breakdown for the percentage "of adults in each group who participated in at least one of a variety of activities in the past 12 months related to personal growth and enrichment...." for those age 65 and older, the percentage engaged in personal learning was 72%. For professional learners ("[a]mong employed adults, % of those who took a course or got extra training in the past 12 months for job-related reasons...") the percentage for those 65 and older was 47%.
The study doesn't just look at age of the learner, but looks at a number of variables, including education, income, ethnicity, race, access to and ownership of tech devices and internet, etc. A pdf of the report is available here.
Monday, April 11, 2016
I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old. Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements. See e.g. here and here. However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.
In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case. Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.
In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system." Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.
By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million. The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015.
The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.
We have all seen advertisements for "anti-aging" products and claims of products and research to defeat aging, reverse the effects of aging or at least slow down time. Last month Fortune ran the article, The Obsession With 'Curing' Aging Is Now Big Business. Opening with statistics about Baby Boomers, the article next notes that "[i]t comes as little surprise, then, that finding ways to extend a healthy life has become big business, attracting many tens of millions in investment dollars from the likes of Google ... and numerous biotechnology companies." The article looks at six "tech titans" who are financing research for "longevity solutions," including the co-founder of the Methuselah Foundation who explains "[t]he Methuselah Prize has been credited for encouraging scientists to work on anti-aging research and treat aging as a "medical condition...." The research is fascinating. Check out the article and consider including this topic in a class discussion.
Friday, April 8, 2016
U.S. Department of Labor has a new guide book, "Paying Minimum Wage and Overtime to Home Care Workers," to assist families in understanding updated rules for payment of home care workers. These rules became fully effective on January 1, 2016.
The goal of the recently finalized "Home Care Final Rule" is to "make sure that home care workers have the same basic wage protections as most U.S. workers, including those who perform the same jobs in nursing homes and group homes." The rule applies "if you hire the worker directly, and no agency or other organization is involved," but may also apply if you hired the worker through an agency.
Employers must keep certain basic records for home care workers, and these records will be key to determining proper payment, especially for overtime:
1. Full name;
2. Social security number;
3. Home address;
4. Hours worked each day and total hours worked each workweek;
5. Total cash wages paid each week to the employee by employer, including any overtime pay; and
6. Any weekly amounts claimed by the employer as part of wages for housing or food provided to the employee/.
The guide explains special rules that apply if the paid care provider is a family member or if the paid worker is "living in."
In addition, the guideline explains the "narrow" exemption from minimum wage and overtime rules that applies for home care workers who provide only "companionship services." The key here is that the the worker can be spending no more than 20% of his or her working time on tasks such as assisting with personal care (bathing, dressing, cooking, cleaning, etc.) and the worker is not performing any medically related tasks.
Thursday, April 7, 2016
The Journal of American Medical Association (JAMA) Network, JAMA Psychiatry ran an article about a study looking at depression and dementia. Trajectories of Depressive Symptoms in Older Adults and Risk of Dementia considers that "[d]epression has been identified as a risk factor for dementia. However, most studies have measured depressive symptoms at only one time point, and older adults may show different patterns of depressive symptoms over time." The study came to the conclusion that a time line of consideration of a patient's depression may give a better picture of the patient's future potential for dementia ("Older adults with a longitudinal pattern of high and increasing depressive symptoms are at high risk for dementia. Individuals’ trajectory of depressive symptoms may inform dementia risk more accurately than one-time assessment of depressive symptoms.")
Wednesday, April 6, 2016
American Society on Aging (ASA) recently posted about 5 TED talks on Aging. 5 TED Talks on Aging to Inspire You range from curing Alzheimer's to a grandson's invention to help his grandfather with dementia from wandering. There's a talk from Diana Nyad about her historic swim ("In the pitch-black night, stung by jellyfish, choking on salt water, singing to herself, hallucinating ... Diana Nyad just kept on swimming. And that's how she finally achieved her lifetime goal as an athlete: an extreme 100-mile swim from Cuba to Florida") and a chat between Lily Tomlin and Jane Fonda where they "discuss longevity, feminism, the differences between male and female friendship, what it means to live well and women's role in future of our planet. 'I don't even know what I would do without my women friends," Fonda says. "I exist because I have my women friends.'"
Check them out!
A specialized area of "law and aging" is accountability for retirement investments, including public employee pension funds. In Massachusetts there has been a long feud between the Boston Globe media company and the Massachusetts Bay Retirement Authority (MTBA) Pension Fund over access to pension records, especially after the loss of some $25 million in employee retirements assets following the collapse of a hedge fund holding MTBA money. Last month, a Massachusetts judge rejected key arguments by the MTBA's that the records in question were not subject to state public records law:
"The Court will ALLOW the Globe's motion for summary judgment and DENY the Retirement Board's cross-motion. The Retirement Board's preliminary assertions that the Supreme Judicial Court has already resolved the central question of statutory interpretation in the Board's favor, and that in any case the Globe may not press its claims because it failed to join other necessary parties, are both incorrect. On the merits, the Court concludes that the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions. The Board's assertion that the 2013 statutory amendment only applies to records created after its effective date is also incorrect."
For more on the reasoning, see Boston Globe Media Partners, LLC v. Retirement Bd. of Massachusetts Bay Transp. Authority Retirement Fund, 2016 WL 915330 (Superior Ct. Suffolk County, Mass, March 9, 2016).
See also Boston Globe media reports, including Judge Calls for Open MBTA Pension Files, detailing some of the related allegations by whistleblower Harry Markopolos and Boston University finance professor Mark Williams. See also a consulting firm's March 9, 2016 Report for the MBTA that concluded MBTA had accurately reported accounting data on the pension funds during the years in question.
Tuesday, April 5, 2016
a statistical resource for U.S. data related to Alzheimer’s disease, the most common cause of dementia, as well as other dementias. Background and context for interpretation of the data are contained in the Overview. This information includes descriptions of the various causes of dementia and a summary of current knowledge about Alzheimer’s disease. Additional sections address prevalence, mortality and morbidity, caregiving, and use and costs of health care, long-term care and hospice. The Special Report discusses the personal financial impact of Alzheimer’s disease on families.
The costs of caring for a relative or friend with Alzheimer’s disease or another dementia can have striking effects on a household. These costs can jeopardize the ability to buy food, leading to food insecurity and increasing the risks of poor nutrition and hunger. In addition, the costs can make it more difficult for individuals and families to maintain their own health and financial security. Lack of knowledge about the roles of government assistance programs for older people and those with low income is common, leaving many families vulnerable to unexpected expenses associated with chronic conditions such as Alzheimer’s and other dementias. Better solutions are needed to ensure that relatives and friends of people with dementia are not jeopardizing their own health and financial security to help pay for dementia-related costs.
The Washington Post ran an interesting piece recently, using one couple's history of retirement savings to demonstrate the benefits from coordination and, perhaps, redistribution of assets or payments in advance of actual retirement. The couple then invited commentary from two different financial advisers. From one adviser, they learned:
Having different types of savings accounts can give the couple more control over their tax bill when they retire, [Financial Adviser] Sewell says. Money withdrawn from the tax-deferred accounts, such as the TSPs and the traditional IRAs, will be taxed as ordinary income when retirement withdrawals are made – a tax rate that could be as high as 39.6 percent for workers in the top tax bracket. The Roth IRA, on the other hand, can provide tax-free income in retirement. And money withdrawn from their taxable investing account could be taxed at lower rates, such as the long-term capital gains rate of 20 percent, she says. Adding to that account over time can also provide a separate pool of savings and allow them to hold off on tapping their tax-deferred accounts until they are required to do so at age 70.5, Sewell says. That would give those retirement savings more time to grow tax-free.
They also learned:
But consolidating accounts would make it easier for the couple to track where their money is invested and what fees they are paying, Porter says. They can look into rolling over some or all of their IRA savings into their TSP accounts, which typically have more affordable index-based investment options, Porter says. For example, the average expense ratio for a TSP fund, including target-date funds, stock funds and bond funds, was 0.029 percent in 2015, or 29 cents for every $1,000 invested. In contrast, the average 401(k) investor pays an expense ratio of 0.89 percent, or $8.90 for every $1,000 invested, according to a report by BrightScope and the Investment Company Institute. “I have not seen a lower cost plan, so I think you can’t beat that,” Sewell says.
Our thanks to George Washington Law Professor Naomi Cahn for sending this link.
What a career Sally Fields has had, and all of her experience in playing determined, flawed, and intriguing characters comes into play in her central role in the recently released movie, "Hello, My Name is Doris." Lots to talk about here -- caregivers in family roles, friendship, hording, ageism-- including what it means to be an invisible woman of a certain age, who, after the death of her mother, decides to break away. Many laughs too (some of them rueful).
Monday, April 4, 2016
Maddy Dychtwald, co-founder of AgeWave wrote an article for the Wall Street Journal on happy retirements. In Where People Find the Most Happiness in Retirement, she explains about a survey AgeWave conducted with Bank of America/Merrill Lynch. She explains they found that
While many of us still think of retirement as a time to wind down and take time for ourselves, two-thirds of today’s retirees have found that retirement is, in fact, the best time in life to give back: their time, their talent and their money. (This finding also echoes in many ways what Marc Agronin describes in his article in The Wall Street Journal this week–that people are happier when they are connected to family, friends and community, than spending on the latest adventure.)
Volunteerism and giving seem to play a role in whether a person has a happy retirement.
Even retirees’ definition of success relates strongly to giving back. When we think about retirement and planning for it, too many of us focus almost exclusively on money: “Will I have enough money to do the things I want for as long as I live?” There’s no doubt this is an important question. But, as it turns out, at all income levels, the study shows that retirees are almost six times more likely to define their own personal success in retirement by their generosity rather than their wealth.
The recommendation from Ms. Dychtwald? Consider what will give retirement meaning and reason. "When it comes to happiness in retirement, it seems generosity trumps wealth." The study is available here.
Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis. As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses. As reported by the Las Vegas Review-Journal in an April 1, 2016 article:
An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.
District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.
Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.
But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.
For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices." The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.